In addition to the persons identified by Drummond Company in its Certificate of Interested Persons, the Director, Office of Workers' Compensation Programs, has identified the following interested persons:

This case presents an issue of first impression before this Court. The Director, Office of Workers' Compensation Programs, believes that oral argument may materially aid the Court in the resolution of this case.

In addition to lifetime disability benefits for coal miners, the BLBA provides survivors' benefits to certain of their dependents. Before 1982, eligible dependents of a miner who had been awarded benefits on a lifetime disability claim were automatically entitled to survivors' benefits after his death. Congress eliminated automatic survivors' benefits in 1982, after which survivors were eligible for benefits only by proving that pneumoconiosis caused the miner's death. In 2010, Congress enacted Section 1556 of the ACA, and restored automatic survivors' benefits for claims filed after January 1, 2005, and pending on or after March 23, 2010.

Mr. Davis, who had received a lifetime disability award, died in 1993. Mrs. Davis filed pre-ACA claims for survivors' benefits in April 1993, shortly after her husband's death, and again in March 1998 and October 2000. DOL ALJs finally denied these claims in June 1996, July 1999 and January 2006, respectively because she failed to prove that her husband died due to pneumoconiosis. Mrs. Davis filed her present application, a "subsequent" claim, in April 2010, following the ACA's restoration of automatic entitlement. See 20 C.F.R. § 725.309(c); 78 Fed. Reg. 59118 (Sept. 25, 2013) (a "subsequent" claim is a claim filed more than one year after the final denial of a previous claim). [2] An ALJ awarded the new claim based on the automatic-entitlement provision of ACA Section 1556, and the Board affirmed that decision.

There is no question that the ACA restored automatic entitlement with regard to survivors' original claims. This Court so held in U.S. Steel Min. Co., LLC, v. Director, OWCP (Starks), 719 F.3d 1275, 1283 (11th Cir. 2013). JWR does not contend otherwise. Rather, the issue now before the Court is:

In addition to compensating miners who are totally disabled by pneumoconiosis, Congress has also provided benefits to certain surviving dependents of coal miners afflicted with pneumoconiosis since the BLBA was first enacted in 1969. Starks, 719 F.3d at 1277 (citations omitted). The statute has been substantially amended over the years. [4] As a result, the requirements to secure survivors' benefits have changed over time. See 719 F.3d at 1277-79.

Prior to 1982, a deceased miner's qualifying dependents[5] could obtain survivors' benefits by showing that the miner's death was caused by pneumoconiosis or that the miner had been awarded total-disability benefits during his lifetime. See, e.g., 30 U.S.C. §§ 901, 921, 922(a)(2) (1970). The survivors of such awarded miners were automatically entitled to benefits even if pneumoconiosis played no role in the miners' deaths. See 30 U.S.C. § 922(a)(2) (1970).

In no case shall the eligible survivors of a miner who was determined to be eligible to receive benefits under this title at the time of his death be required to file a new claim for benefits, or refile or otherwise revalidate the claim of such miner.

Pub. L. No. 95-239, 92 Stat. 95, 100 (1978).

In 1981, Congress prospectively eliminated automatic benefits for the survivors of any miner who had not yet filed a claim. This change was effected by appending a limiting clause to 30 U.S.C. § 932(l), which then provided:

In no case shall the eligible survivors of a miner who was determined to be eligible to receive benefits under this subchapter at the time of his or her death be required to file a new claim for benefits, or refile or otherwise revalidate the claim of such miner, except with respect to a claim filed under this part on or after the effective date of the Black Lung Benefits Amendments of 1981 [December 31, 1981].

The 1981 amendments also tightened the BLBA's eligibility requirements by eliminating three statutory presumptions, including one known as the fifteen-year presumption. Under it, workers who had spent at least fifteen years in underground coal mines and suffered from a totally disabling pulmonary impairment were rebuttably presumed to be totally disabled by pneumoconiosis and/or to have died due to pneumoconiosis. 30 U.S.C. § 921(c)(4) (1976). As with Section 932(l), the 1981 amendments limited Section 921(c)(4) to claims filed before January 1, 1982. Pub. L. No. 97-119, 95 Stat 1635, 1643 (1981), codified as 30 U.S.C. § 921(c)(4) (1982).

There things stood until 2010, when Congress once again amended the BLBA via Section 1556 of the ACA, which provides:

SEC. 1556. EQUITY FOR CERTAIN ELIGIBLE SURVIVORS

(a) REBUTTABLE PRESUMPTION.—Section 411(c)(4) of the Black Lung Benefits Act (30 U.S.C. 921(c)(4)) is amended by striking the last sentence [which restricted the applicability of Section 921(c)(4) to claims filed before 1982].

(b) CONTINUATION OF BENEFITS.—Section 422(l) of the Black Lung Benefits Act (30 U.S.C. 932(l)) is amended by striking ", except with respect to a claim filed under this part on or after the effective date of the Black Lung Benefits Amendments of 1981".

(c) EFFECTIVE DATE.—The amendments made by this Section shall apply with respect to claims filed . . . after January 1, 2005, that are pending on or after the date of enactment of this Act [March 23, 2010].

On September 25, 2013, DOL promulgated revised regulations to implement ACA Section 1556. 78 Fed. Reg. 59102-19. The revised regulations became effective October 25, 2013. Based on the plain language of Section 1556, the regulations provide that an eligible survivor is entitled to benefits if the miner received a lifetime award and the survivor's claim meets the time limitations of ACA Section 1556(c). 20 C.F.R. §§ 725.212(a)(3)(ii), .218(a)(2), .222(a)(5)(ii); 78 Fed. Reg. 59117-18; see 78 Fed. Reg. 59109 (explaining that revised regulations implement plain language of Section 1556 with regard to survivors' subsequent claims).

Moreover, with regard to survivors' subsequent claims, the revised regulations eliminate the requirement of proving a change in an applicable condition of entitlement where the survivor's prior claim was a pre-ACA claim and was denied prior to the enactment of the ACA, i.e., filed on or before January 1, 2005, or filed after January 1, 2005, but finally denied prior to March 23, 2010. [6] 20 C.F.R. § 725.309(c)(1); 78 Fed. Reg. 59118. As a result, the revised regulations explicitly make Section 1556's restoration of automatic entitlement applicable to survivors' subsequent claims just as it does to survivors' original claims. [7]See 78 Fed. Reg. 59108-11.

Inexplicably, JWR relies on the pre-ACA version of DOL's regulations (which, of course, implemented the pre-ACA version of the BLBA). The old regulations required the denial of a survivor's subsequent claim when the denial of her prior claim was based on the miner's physical condition at the time of death, namely, that it was not due to pneumoconiosis. 20 C.F.R. § 725.309(d)(3). This was so because before the ACA a survivor's subsequent claim required proof of a change in condition and a miner's physical condition could not change following death. See 65 Fed. Reg. 79968 (Dec. 20, 2000).

The relevant facts in this appeal are procedural in nature, and are included in the procedural history. After spending sixteen years in the mines, Mr. Davis filed a claim for lifetime disability benefits in November 1992. Director's Exhibit (DX) 1. [8] Unfortunately, Mr. Davis died in February 1993, while his claim was still pending. DX 8. A DOL district director ultimately awarded his claim in April 1994. Id. JWR did not appeal that award, and it became final.

Mrs. Davis filed a claim for survivors' benefits in April 1993. DX 2. An ALJ denied her claim in June 1996, finding that although her husband had pneumoconiosis, Mrs. Davis failed to prove that his death was due to the disease. Id. She filed another claim on March 4, 1998. DX 3. Since her first claim had been denied, an ALJ automatically denied this claim in July 1999. [9]Id. She filed a third claim October 2000, DX 4, which was likewise automatically denied in January 2006. Id.

After Congress amended the BLBA via the enactment of Section 1556 of the ACA, Mrs. Davis filed a subsequent claim on April 28, 2010. DX 5. A DOL district director awarded this claim DX 14, and JWR asked for an ALJ hearing. DX 16.

The ALJ issued a decision awarding Mrs. Davis' claim. Record Excerpts (RE) at Tab 3. He found that Mrs. Davis satisfied the familial relationship and dependency criteria for survivors under the BLBA. RE at Tab 3, p. 1-2. He also found, based on the award on Mr. Davis' lifetime claim and the filing date of Mrs. Davis' 2010 claim, that she was entitled to benefits under BLBA Section 932(l), as revived by ACA Section 1556. RE at Tab 3, pp. 2-3. JWR appealed to the Board, arguing that Section 1556 did not apply to Mrs. Davis' 2010 claim, and that the claim was barred by 20 C.F.R. § 725.309(d)(3) and principles of res judicata.

The Board rejected JWR's contentions and affirmed the ALJ's award of benefits. RE at Tab 2. It rejected the company's arguments based on its prior decision in Richards v. Union Carbide Corp., 25 BLR 1-31 (BRB 2012), aff'd sub nom. Union Carbide Corp. v. Richards, 721 F.3d 307 (4th Cir. 2013). RE at Tab 2, p. 3. In Richards, the Board (with one judge dissenting) held that, in reinstating automatic benefits, Congress had "effectively created a 'change,' establishing a new condition of entitlement unrelated to whether the miner died due to pneumoconiosis." 25 BLR at 1-37. Thus, the Board concluded that "the principles of res judicata addressed in Section 725.309 . . . are not implicated in [a survivor's subsequent claim governed by ACA Section 1556] because entitlement thereto is not tied to relitigation of the prior finding that the miner's death was not due to pneumoconiosis." 25 BLR at 1-37/38 (footnote and citation omitted). JWR then petitioned this Court for review.

The issue presented here is one of law, involving the interpretation and scope of ACA Section 1556. The Court "review[s] de novo questions of statutory interpretation," including interpretation of Section 1556. Starks, 719 F.3d at 1280.

The Court should affirm Mrs. Davis' award. The Third Circuit in Marmon Coal and the Fourth Circuit in Union Carbide have held in published opinions that a survivor's subsequent claim is properly awarded under the automatic-entitlement provision of ACA Section 1556. This Court should follow suit.

The plain language of ACA Section 1556 applies without qualification to all claims that satisfy its time limitations. Thus, miners' and survivors' claims, both original and subsequent, that are filed after January 1, 2005, and are pending on or after March 23, 2010, are governed by the ACA amendments. Consistent with the plain statutory text, DOL's regulations implementing Section 1556 similarly provide for automatic entitlement on survivors' subsequent claims meeting the filing and pendency requirements of Section 1556(c). Senator Byrd's post-ACA enactment statement, which JWR relies on, simply cannot overcome these clear pronouncements.

Moreover, Mrs. Davis' 2010 application is the operative filing for purposes of Section 1556, and the award of that claim does not undermine the finality of the denial of her prior claims. A survivor's original claim and a subsequent claim are not the same—they involve different bases of relief, have different factual predicates, and cover different periods of entitlement. Likewise, the award of Mrs. Davis' claim is fully consistent with the time limitations of Section 1556(c).

Finally, JWR waived any res judicata defense to Mrs. Davis' claim by failing to properly argue the issue in its opening brief. Even if presented, res judicata does not bar automatic entitlement on Mrs. Davis' subsequent claim. In restoring automatic entitlement, Congress created an entirely new and independent cause of action that was previously unavailable to Mrs. Davis. This new cause of action is based on the administrative fact of her husband's lifetime award, not whether his death was caused by pneumoconiosis (the basis for the denial of Mrs. Davis' prior claims). Thus, the two causes of action arise out of different facts and are supported by different documentation.

The Court should affirm the award of Mrs. Davis' subsequent claim, as the ALJ and the Board properly determined that she was automatically entitled to benefits under ACA Section 1556. Under the plain statutory language, the automatic-entitlement provision applies to all survivors' claims, both original and subsequent filings.

In construing a statute, "the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue[,] judicial inquiry into the statute's meaning, in all but the most extraordinary circumstance, is finished." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992); accord Starks, 719 F.3d at 1281. Section 1556 states, without qualification, that the amendments to the BLBA "apply with respect to claims filed . . . after January 1, 2005, that are pending on or after [March 23, 2010]." Pub. L. 111-148, § 1556(c) (2010) (emphasis added). As this Court held in Starks,

Section 1556(c) does not distinguish between miners' and survivors' claims. The plain meaning of § 1556(c) is that anyone—miner or survivor—who filed a claim for benefits after January 1, 2005, that remained pending on March 23, 2010, [10] can receive the benefits of the amendment.

719 F.3d at 1285 (emphasis added); accord Vision Processing, 705 F.3d at 555; Stacy, 671 F.3d at 388. Just as the statute does not distinguish between miners' and survivors' claims, it likewise does not distinguish between original and subsequent claims. Thus, for this very reason—the absence of limiting language— the Third and Fourth Circuits have held that Section 1556's plain language encompasses survivors' subsequent claims (as well as their original claims). Marmon Coal, 726 F.3d at 392; Union Carbide, 721 F.3d at 314.

Accordingly, the Court should affirm Mrs. Davis' award under both the plain language of Section 1556 and DOL's regulations. She filed her current claim after January 1, 2005, and that claim was pending on or after March 23, 2010. Her 2010 claim therefore satisfies the time limitations of Section 1556. Pub. L. 111-148, § 1556(c) (2010). Moreover, Mrs. Davis' late husband obtained benefits on a claim during his lifetime, and she meets the dependency and relationship criteria for eligible survivors. Hence, she is automatically entitled to survivors' benefits. 30 U.S.C. § 932(l); Pub. L. No. 111-148, § 1556(b) (2010).

JWR does not really come to grips with the plain language of ACA Section 1556. Rather, the company makes a series of related arguments regarding the operative "claim" in this case in an attempt to show that Mrs. Davis cannot take advantage of Section 1556's provisions. Pet. Br. at 11-16. In essence, JWR contends that 1) Mrs. Davis' original 1993 claim is the operative claim for determining the application of Section 1556; 2) that an award on her 2010 claim therefore undermines the finality of the denial of the 1993 claim; and 3) that an award on the 2010 claim abrogates the time limitations of Section 1556(c). All of these arguments are wrong.

JWR argues that because a survivor does not have to file a "claim" under revived BLBA Section 932(l), but ACA Section 1556(c) applies only to "claims" meeting its filing-date and pendency requirements, Mrs. Davis' original 1993 application is the operative filing. Since the 1993 claim was filed long before 2005, JWR argues that Mrs. Davis cannot take advantage of Section 1556.

This argument is based on the same "tortured" reading of BLBA Section 932(l) and ACA Section 1556 that the Starks court rejected. 719 F.3d at 1286 (quoting Stacy, 671 F.3d at 389). There, the coal company argued that because the survivor was not required to file a "claim" under BLBA Section 932(l), the "claim" for purposes of Section 1556(c) had to be the miner's claim (which was filed before 2005, and thus would not be subject to ACA Section 1556). See 719 F.3d at 1285. The Court roundly rejected this contention. 719 F.3d at 1285-86.

As the Court explained, the purpose of Section 932(l) was to relieve the claimant of the burden of proving anything beyond the miner's lifetime award and her status as an eligible survivor. 719 F.3d at 1284. It did not relieve the survivor of the burden of taking some action (i.e., making some assertion of her entitlement to benefits) in order to avail herself of Section 1556's provisions. [12]Id. And that action is the "claim" for determining whether Section 1556 applies. See 719 F.3d at 1285-86.

In so holding, the Court acknowledged the "natural presumption that identical words used in different parts of the same act are intended to have the same meaning" (a presumption on which JWR heavily relies), but explained that "this presumption is not rigid and readily yields" when the context suggests a variation in meaning." 719 F.3d at 1286 (internal quotations and citations omitted). The Court rejected the coal company's argument because "Section 1556(c) applies the amended § 932(l) to 'claims' filed in the specified period [and b]oth miners and survivors were required to file claims during [that] period. If this context does not demand a variation in the meaning of the word 'claim,' we do not know what context would." [13]Id; see also Stacy, 671 F.3d at 389 ("it does not contravene the plain language of § 932(l) to determine the applicability of Section 1556(c) based on the date of the survivor's claim").

The same result should obtain here on Mrs. Davis' 2010 application. Since her husband received a lifetime award and she is his widow, BLBA Section 932(l) relieves Mrs. Davis of the burden of filing a "claim"—i.e., proving that he died due to pneumoconiosis. See Starks, 719 F.3d at 1284 (where automatic entitlement not available, survivor "must file a claim and make the appropriate showing—including . . . that the miner died due to pneumoconiosis"). Nonetheless, "some submission of information is required." Starks, 719 F.3d at 1284; see B & G Constr., 662 F.3d at 244, n. 12 (survivor must "file something" to take advantage of Section 1556). Although not required to do so, Mrs. Davis chose to file a new formal application for survivor's benefits. DX 5. That is the operative filing for determining the applicability of ACA Section 1556. [14]

Similarly, JWR's contention that DOL finally determined in Mrs. Davis' 1993 claim that her husband did not die due to pneumoconiosis—and that Section 1556 cannot strip that prior determination of its finality—while true, is irrelevant. Contrary to JWR's belief, the 1993, 1998 and 2000 claims remain finally denied, and the award of benefits on Mrs. Davis' 2010 subsequent claim does not undermine the finality of those earlier denials.

It is undisputed that a claimant in a subsequent claim "is . . . precluded from collaterally attacking the prior denial of benefits." LaBelle Processing Co. v. Swarrow, 72 F.3d 308, 314 (3d Cir. 1995). Indeed, for purposes of a subsequent claim, "the correctness of [the prior decision's] legal conclusion" must be accepted in adjudicating the latter application. Lisa Lee Mines, 86 F.3d at 1361. Thus, as this Court affirmed, albeit in the context of a miner's claim, the adjudication of a subsequent claim gives "full credit" to the finality of the prior denied claim. [15]Jones, 386 F.3d at 990.

Finally, JWR's related contention that the plain-language reading of Section 1556—permitting award of survivors' subsequent claims—will effectively abrogate the time limitations contained in Section 1556(c) misses the mark. To the contrary, the application of Section 1556 to subsequent claims is fully consistent with its time limitations.

First, currently-pending claims (whether miner or survivor) filed on or before January 1, 2005, do not fall under the ACA amendments. [16] Second, and perhaps more importantly in the survivor-subsequent-claim context, the time limitations require survivors to take some action after January 1, 2005, to initiate the administrative application of Section 932(l). See Starks, 719 F.3d at 1284 ("[a] survivor is not relieved of a burden to act" and must make "some submission of information"); see also Union Carbide, 721 F.3d at 317 ("claimants . . . must still take steps to assert their . . . rights"); B & G Constr., 662 F.3d at 244, n. 12 ("a widow seeking benefits must file something in order to receive them"). In other words, if a survivor who would be entitled to benefits under the revived Section 932(l) takes no action after January 1, 2005, she will not benefit from the revived statute.

Conversely, the time limitations in Section 1556(c) "prevent[] DOL from having to sua sponte reopen claims filed before 2005 but denied before the amendment's enactment." Union Carbide, 721 F.3d at 317. As a result, the practical effect of Section 1556(c) is to significantly limit the actual number of subsequent claims by survivors under Section 1556. See id. (explaining that DOL records show only approximately 130 subsequent claims filed by survivors under Section 1556) (citation omitted). Thus, automatic entitlement on subsequent claims is fully consistent with Section 1556(c)'s time limitations. The Court should apply the statute just as Congress wrote it.

In addition to its failed arguments regarding the language of Section 1556, JWR claims Congress did not intend to bring survivors' subsequent claims within the ambit of statute, citing Senator Byrd's post-enactment statement regarding the provision. Pet. Br. at 9-11. The company specifically relies on Senator Byrd's statement that Section 1556 was meant to apply to "widows who never filed for benefits following the death of a husband." 156 Cong. Rec. S2083-84 (daily ed. Mar. 25, 2010).

This reliance is misplaced. Since the ACA's text makes plain that automatic entitlement is available on survivors' subsequent claims, there is no need for resort to legislative intent. See Starks, 719 F.3d at 1281 (citations omitted). Moreover, this Court has already explained that "Senator [Byrd]'s post-enactment statement is not legitimate legislative history." 719 F.3d at 1283, n. 9 (citations omitted). Finally, to the extent that it carries weight, Senator Byrd's reference to the ACA's scope as "including" certain types of claims is merely an illustration of the claims to which Section 1556 applies, not an exhaustive list, and thus is not inconsistent with a literal reading of the ACA. Marmon Coal, 726 F.3d at 393; Union Carbide, 721 F.3d at 316. In short, Senator Byrd's statement will not bear the weight JWR places on it.

Lastly, JWR alludes to Mrs. Davis' 2010 claim as being barred by res judicata. Pet. Br. at 8. The company, however, makes no argument and cites no authority for a res-judicata defense here. The Court, therefore, should decline to consider the issue. See Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) ("A passing reference to an issue in a brief is not enough, and the failure to make arguments and cite authorities in support of an issue waives it." (citation omitted)). In any event, JWR cannot establish a res-judicata defense to Mrs. Davis' 2010 claim. See In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (burden on party asserting res judicata to establish all elements).

"Under res judicata . . . a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that [prior] action." Id. (citation omitted). The asserting party must establish four elements:

(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties . . .; and (4) both cases must involve the same causes of action.

Id. (citations omitted). The fourth element includes both a legal dimension (whether the theory of relief pursued in the later action was or could have been available in the prior action) and a factual dimension (whether the facts at issue in the later action were or could have been raised in the prior action). [17]See Maldonado, 664 F.3d at 1375-76.

While the first three elements are met here, JWR's res judicata defense founders on both the legal and factual dimensions of the fourth element. It cannot satisfy the legal dimension because Mrs. Davis' 2010 claim—based on automatic entitlement under ACA Section 1556—involves a theory or basis of relief that was plainly unavailable in her prior claims. See Starks, 719 F.3d at 1283-84 (distinguishing post-ACA survivor action for automatic entitlement with pre-ACA action requiring survivor prove death due to pneumoconiosis); Union Carbide, 721 F.3d at 315 (ACA Section 1556 created a new theory of relief for survivors—automatic entitlement based on the miner's lifetime award—that was not and could not have been raised in prior, pre-ACA claims); see generally Maldonado, 664 F.3d at 1377 (second action not barred where statutory change created new theory of relief not available in first action). Because Section 932(l) was not applicable when she filed her prior claims, Mrs. Davis' 2010 claim represents a new and different statutory basis for relief than her prior claims.

Likewise, JWR's res-judicata defense falls short with regard to the facts. A court must closely examine the facts at issue in prior and later actions, and "res judicata [will] not bar a claim that was not in existence at the time of the original action unless the facts underlying the claim were raised in that [original] action." In re Piper Aircraft, 244 F.3d at 1299. There can be little doubt that automatic-entitlement claims under ACA Section 1556 are based on different facts than pre-ACA survivor claims – the former requiring proof of a miner's lifetime award, the latter proof of the cause of his death. Marmon Coal, 726 F.3d at 395; see also Union Carbide, 721 F.3d at 315 (automatic-entitlement claim based on "entirely unrelated factual issue" compared with pre-ACA death-due-to- pneumoconiosis claim) (emphasis added); Starks, 719 F.3d at 1284 (survivor "required to show only that she met the appropriate relational and dependency requirements . . . and that [the miner] was receiving benefits when he died. . . . She was not required to show that [he] died due to pneumoconiosis.").

Here, Mrs. Davis could recover in her original 1993 claim only by proving with medical evidence that pneumoconiosis hastened her husband's death from lung cancer. [18]See DX 2. By contrast, her subsequent claim for automatic entitlement rests solely on the administrative fact that her husband had been awarded benefits in his lifetime claim. Thus, Mrs. Davis' current and prior claims are not based on the same factual predicates. See In re Piper Aircraft, 244 F.3d at 1299.

In short, even if JWR has not waived the issue, survivors' subsequent claims based on the automatic-entitlement criteria of BLBA Section 932(l) are not barred by res judicata. Rather they represent new causes of action that are not precluded by prior denials based on a survivor's failure to prove death due to pneumoconiosis.

I hereby certify that this brief complies with the page limitation of Fed. R. App. P. 32(a)(7)(A). This brief contain contains 6,601 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I also certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally-spaced typeface using Microsoft Word 2010 in fourteen-point Bookman Old Style font.

[1] The Black Lung Disability Trust Fund has paid benefits to Mrs. Davis on an interim basis. See 20 C.F.R. § 725.522(a). If the Court affirms her award, JWR will have to reimburse the Trust Fund for the payments made, see 20 C.F.R. § 725.602, in addition to paying continuing benefits to Mrs. Davis.

[2] DOL revised its black-lung program regulations in light of the amendments to the BLBA contained in ACA Section 1556. See 78 Fed. Reg. 59102-19 (Sept. 25, 2013). Citations in this brief to the 2013 revisions are accompanied by parallel citations to the appropriate page(s) in the Federal Register.

[5] To qualify for survivors' benefits, a claimant also must satisfy the program's familial relationship and dependency requirements. See 20 C.F.R. §§ 725.212, .218, .222; 78 Fed. Reg. 59117-18. There is no dispute that Mrs. Davis satisfies these requirements.

[7] The period of entitlement on a subsequent claim is more limited, however. While a survivor on an original claim is entitled to benefits dating to the month of a miner's death, 20 C.F.R. § 725.503(c), entitlement on a subsequent claim commences with the month after the denial of the survivor's prior claim became final. 20 C.F.R. § 725.309(d)(5) (now renumbered as 20 C.F.R. § 725.309(c)(6); 78 Fed. Reg. 59118).

[8] Exhibit numbers refer to the administrative record created when this case was before the ALJ.

[9] The regulations applicable to claims filed before 2001 mandated automatic denial of all subsequent claims filed by survivors. 20 C.F.R. § 725.309(d) (1999); see Coleman v. Director, OWCP, 346 F.3d 861, 863-65 (11th Cir. 2003) (affirming denial of survivor's subsequent claim governed by pre-2001 regulation). Regulations promulgated in 2000 provided that automatic denial resulted only when the miner's physical condition at the time of death was at issue. See supra at pp. 10-11.

[11] JWR contends that DOL's pre-ACA subsequent-claim regulation, 20 C.F.R. § 725.309(d), precludes entitlement on Mrs. Davis' claim, as she cannot establish a change in an applicable condition of entitlement as required by that regulation. Pet. Br. at 8-9; see supra at pp. 10-11. The prior regulation, however, has been superseded, and the governing new regulation expressly eliminated this requirement for survivor subsequent claims under the ACA. 20 C.F.R. § 725.309(c)(1); 78 Fed. Reg. 59118; Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 711 (1974) (court applies law in effect at time of decision). Even if the former regulation were applicable, JWR's argument would still lack merit. According to the Fourth Circuit, "[b]y restoring the derivative entitlement provisions of Section 932(l), Congress has effectively created a 'change' [under former Section 725.309] establishing a new condition of entitlement unrelated to whether the miner died due to pneumoconiosis." Union Carbide, 721 F.3d at 314; see also Consolidation Coal Co. v. Director, OWCP, 721 F.3d 789, 794 (7th Cir. 2013) ("we see no reason why a subsequent change analysis should treat a change in the applicable law any differently than a material change in the physical condition of the miner"). Moreover, even if the former regulation were interpreted to require that Mrs. Davis' subsequent claim be denied, it is trumped by Congress' subsequent revision of the statute. See, e.g., Caldera v. J.S. Alberici Constr. Co., 153 F.3d 1381, 1383 n.** (Fed. Cir. 1998) ("[s]tatutes trump conflicting regulations"); Wolf Creek Collieries v. Robinson, 872 F.2d 1264, 1267 (6th Cir.1989) ("statutory language . . . prevail[s] over inconsistent regulatory language").

[12] While BLBA Section 932(l) provides that a survivor is not required to file a claim, it does not prohibit her from doing so. Stacy, 671 F.3d at 389.

[13] In light of this holding, JWR's contention that the Court should not follow the holding in Union Carbide because the Fourth Circuit applied a different definition of claim for purposes of Section 1556(c) than this Court applied in Starks, Pet. Br. at 15-16, is plainly wrong. The Fourth Circuit agrees with this Court that BLBA Section 932(l) relieves a survivor of the burden of proving that a miner died due to pneumoconiosis, but does not relieve her of the burden of taking some action after January 1, 2005, in order to take advantage of ACA Section 1556. See Union Carbide, 721 F.3d at 310; Stacy, 671 F.3d at 388-89 And that action is the "claim" for purposes of Section 1556(c). See Union Carbide, 721 F.3d at 317; Stacy, 671 F.3d at 389. Thus, there is no distinction between Union Carbide and Starks as posited by JWR.

[14] JWR's operative-filing argument is implicitly premised on the view that a "claim" refers to a coal company's general liability to a particular claimant without regard to how many applications she may have filed, when she filed them, or the theories on which she seeks to recover. That, however, is not what "claim" generally means in the BLBA context. The regulations define a "claim" as a "written assertion of entitlement to benefits" submitted in an authorized form and manner). 20 C.F.R. § 725.101(a)(10); accord Lovilia Coal Co. v. Harvey, 109 F.3d 445, 449 (8th Cir. 1997) (under BLBA Section 932, "claim" refers to distinct application for benefits). Thus, a subsequent claim and a prior one simply "are not the same." Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1362 (4th Cir. 1996) (en banc).

[16] The ACA time limitations also apply to miner and survivor claims involving the revived fifteen-year presumption of Section 921(c)(4). See Consolidation Coal, OWCP, 721 F.3d at 792. Thus, even if the limitations had no application to survivors' claims under Section 932(l), as JWR contends, they would not be mere surplusage.

[17] Notably, res judicata "applies even more flexibly in the administrative context than it does when a second court of competent jurisdiction is reviewing the decision of a first court." Maldonado v. U.S. Att'y Gen'l, 664 F.3d 1369, 1378 (11th Cir. 2011).

[18] And her 1998 and 2000 claims were denied on the same basis as her 1993 claim. See DX 3, 4; 20 C.F.R. § 725.309(d) (1999).